1. K.S.A. 60-258a(a) of the comparative negligence statute is discussed and applied.

2. Conduct prior to an injury or death is not legally significant in an action for damages,
unless it is a legal or proximate cause of the injury or death. It is inconsistent with the
reasonable and normal expectations for the court to excuse or reduce the medical
provider's liability simply because it was the patient's own fault that he or she required
care in the first place.

3. Pecuniary loss or damages in a wrongful death case should be equivalent to those
pecuniary benefits or compensation that reasonably could have been expected to have
resulted from the continued life of the deceased.

4. Parents in wrongful death actions may recover pecuniary damages for the death of their
majority age children.

5. Plaintiffs in wrongful death actions are not required to prove their losses with
mathematical certainty. In many instances, the burden of proof can be satisfied simply
by showing the nature and extent of the loss asserted.

6. In order to prevail in a medical malpractice action, a plaintiff must prove three elements:
(1) A duty was owed by the physician to the patient; (2) the duty was breached; and (3)
a causal connection existed between the breached duty and the injury sustained by the
patient.

7. Every physician has the duty to use reasonable care and to exercise that reasonable degree
of learning, skill, and experience which is ordinarily possessed by other physicians in the
same or similar locations.

8. Juror misconduct which results in prejudice to a litigant and impairs his or her right to
a fair and impartial trial requires a new trial. It is for the trial court to determine whether
misconduct on the part of a juror has resulted in prejudice to a litigant. The trial court's
judgment will not be overturned absent a manifest abuse of discretion.

Michael L. Sexton, of Sexton, Shelor, Latimer & Pryor, of Shawnee
Mission, and James E. Shetlar, of Law
Offices of James E. Shetlar, of Overland Park, for appellees.

Before ELLIOTT, P.J., MARQUARDT, J., and ROGG, S.J.

MARQUARDT, J.: Dr. Thomas V. Thomas appeals a jury award in
favor of Richard
and Karen Huffman awarding them pecuniary and nonpecuniary damages for the wrongful death
of their son, Robert.

On July 21, 1993, while working at Edgar's Transmission Service, Robert Huffman drove
a full-sized pick-up truck onto a lift. The truck fell off the lift, pinning Robert to the floor.

Paramedics transported Robert to the Providence Medical Center emergency room (ER)
where he was seen by Dr. Payne at 12:50 p.m. Dr. Payne noted that Robert's vital signs were
normal; however, he ordered a series of blood tests, x-rays, and a CT scan. No x-ray of Robert's
chest was ordered.

Dr. Payne contacted a neurosurgeon, an orthopedist, and a urologist. The Huffmans
requested that Dr. Lee, a general surgeon, be contacted; however, he was not available. At 1:30
p.m., Dr. Payne called Dr. Thomas, a cardiothoracic surgeon. The time at which Dr. Thomas
arrived at the ER is in dispute. Dr. Payne testified that it was approximately 2 p.m. and Dr.
Thomas testified that it was 3 p.m.

When Dr. Thomas arrived in the ER, he reviewed the CT scan results which showed that
"[t]here was blood up and down along the aorta. There was also some free blood in the chest
space that is between the lung and the wall of the chest." The CT scan also showed a severance
of the left renal artery, a badly broken pelvis, several spinal fractures, and a large amount of
blood in Robert's lower abdomen.

At 3:40 p.m., Dr. Thomas ordered a chest x-ray which showed the presence of fluid in
Robert's chest. Dr. Thomas inserted a tube in Robert's chest and extracted approximately 1,100
cc of blood. Dr. Thomas determined that Robert had a "slow bleed" in his chest.

At 4 p.m., Robert was taken to the cardiac catherization lab for an aortogram. Before the
procedure began, Robert's heart stopped. Robert was revived and the procedure was completed.
The aortogram showed two tears in the thoracic aorta and surgery was indicated.

Dr. Thomas was informed that it would be 30 to 45 minutes before the operating room
and staff could be ready to do the surgery. Thus, Robert was transferred to the intensive care
unit, the "safest place for him before going to the operating room." Robert died in the intensive
care unit at approximately 6:30 p.m.

The Huffmans filed a motion in limine asking the trial court to exclude evidence of
Robert's comparative negligence. Dr. Thomas filed a motion in limine asking that certain
testimony from the Huffman's economic expert be excluded.

At the hearing on both parties' motions in limine, the parties agreed to most of the issues
raised. The dispute at the hearing centered on whether Dr. Thomas would be allowed to
introduce evidence of Robert's comparative negligence. Dr. Thomas offered testimony from the
owner of the transmission shop, Charlie Edgar, who believed that Robert incorrectly placed the
truck on the lift. The trial judge ruled that evidence of Robert's comparative negligence would
not be admitted.

A trial was held, and at the end of the Huffmans' case, Dr. Thomas moved for a directed
verdict, arguing that the Huffmans failed to present expert testimony that would establish a
causal connection between Dr. Thomas' actions and Robert's death and that the Huffmans did
not present sufficient economic testimony to allow the jury to award pecuniary damages. The
trial court denied the motion, stating that the Huffmans presented enough evidence to allow the
case to go to the jury. The judge did not immediately rule on the issue of pecuniary damages.

At the close of his case, Dr. Thomas again moved for a directed verdict. The trial judge
denied the motion, including the portion involving pecuniary damages.

The jury returned a verdict finding Dr. Payne 35 percent at fault, Providence Medical
Center 5 percent at fault, and Dr. Thomas 60 percent at fault. The jury also found that Robert's
chance for survival had he received proper medical care was 80 percent. The jury awarded
nonpecuniary damages of $150,000 and pecuniary damages of $907,732.52. A judgment of
$634,639.51 was entered against Dr. Thomas.

Dr. Thomas filed a motion for a new trial, renewing the issues raised in his motions for
a directed verdict and also the issue of jury misconduct. Dr. Thomas presented an affidavit from
one juror which stated that the jury considered attorney fees when setting the amount of
pecuniary damages. Dr. Thomas also provided the trial court with a sworn statement from one
of the defense attorneys, Sally Howard, who swore that another juror told her about alleged jury
misconduct. Dr. Thomas asked the court to recall the jurors and question them about any
misconduct.

The Huffmans presented affidavits from nine jurors which stated that attorney fees were
not considered when computing pecuniary damages. The trial judge refused to recall the jurors
and denied Dr. Thomas' motion for a new trial. Dr. Thomas appeals all adverse rulings of the
district court.

Comparative Negligence

Dr. Thomas argues that the jury should have been allowed to consider Robert's
negligence. He states that comparative fault should be considered even in a medical malpractice
action. The trial court's order denying a new trial listed five reasons for excluding evidence of
comparative negligence. The trial judge also stated that there was no causal relationship between
the cause of Robert's injuries and the treatment given by Dr. Thomas.

loss, if such party's negligence was less than the causal negligence of the party

or parties against whom claim for recovery is made, but the award of damages

to any party in such action shall be diminished in proportion to the amount

of negligence attributed to such party. If any such party is claiming damages

for a decedent's wrongful death, the negligence of the decedent, if any, shall

be imputed to such party."

The Kansas Supreme Court applied this statute to the medical malpractice case of Cecil
Wisker, who was injured in a motorcycle accident. The emergency room treating physician
instructed Wisker to refrain from all strenuous activity and lifting. Wisker v. Hart,
244 Kan. 36,
37, 766 P.2d 168 (1988). Disregarding the instructions, Wisker returned to his job as a mechanic
and aggravated his injury. He died after unsuccessful surgery. The jury in the wrongful death
proceedings was permitted to consider Wisker's fault. 244 Kan. at 40-41. See also Cox v.
Lesko,
263 Kan. 805, 953 P.2d 1033 (1998) (jury allowed to consider comparative fault when the
plaintiff
did not perform rehabilitation exercises that were prescribed by her physician).

These decisions are distinguishable from the instant case because both Wisker and Cox
failed to follow their physician's instructions. Robert Huffman had no opportunity to follow
or disregard Dr. Thomas' instructions.

In Florida, Jimmy Whitehead went to an emergency room after attempting suicide by
taking an overdose of various pills. He stopped breathing and was not immediately revived.
This ultimately led to his death. The plaintiff's expert witness testified that the treatment
Whitehead received fell below the standard of care. Whitehead v. Linkous, 404 So.
2d 377 (Fla.
Dist. App. 1981). The trial court instructed the jury on the issue of comparative negligence, and
the jury found Whitehead himself was 67 percent negligent. The appellate court reversed,
holding that Whitehead's conduct was no defense to malpractice, which is a distinct and
subsequent injury. The court stated: "[C]onduct prior to an injury or death is not legally
significant in an action for damages like this, unless it is a legal or proximate cause of the injury
or death--as opposed to a cause of the remote conditions or occasion for the later negligence."
404 So. 2d at 379.

The trial court in Spence v. Aspen Skiing Co., 820 F. Supp. 542 (D. Colo.
1993), instructed
the jury on comparative negligence. Lynne Spence became dizzy while she was skiing because
she failed to follow a special hypoglycemic diet that was prescribed by her doctor. During the
course of her treatment, an emergency medical technician made an error in administering
intravenous fluids to Spence, and Spence eventually lost partial use of her arm. The appellate
court reversed the trial court, noting that it would be "inconsistent with the reasonable and
normal expectations of both parties for the court to excuse or reduce the provider's liability
simply because it was the patient's own fault that she required care in the first place." 820 F.
Supp. at 544.

The instant case is similar to Whitehead and Spence. Dr.
Thomas reviewed the CT scan
when he first arrived at the ER. John W. Barrett, M.D., the Huffman's expert, testified that "the
results of a CT scan which had shown that there was clearly blood in the chest, and I think that
yes, a chest tube should have been inserted as soon as they knew that there was a significant
amount of blood in the chest." Dr. Thomas' ordering of the aortogram at 3 p.m. did not meet
accepted standards of medical practice. Dr. Barrett also testified that not inserting the chest tube
until 4 p.m. did not meet accepted standards of medical care. Dr. Barrett said, "[T]he chest tube
should have gone in, the source of bleeding should have been recognized, he [Dr. Thomas]
should have taken him [Robert] to the operating room to control the source of bleeding within
his chest."

By the time that Dr. Thomas decided to take Robert to the operating room, Dr. Barrett
estimated that Robert's chances of survival had gone from 80-85 percent to 5 percent. Dr.
Thomas owed Robert the same level of care that he owed to every patient. This was noted by
the trial judge, who stated that this case "depends on whether or not this physician departed from
appropriate standards of medical care, and these injuries occurred before that decision was made."

Even if the trial court would have decided differently, it does not appear that Dr. Thomas
could prove Robert's comparative negligence. Dr. Thomas offered the testimony of Charles
Edgar, the owner of the transmission shop where Robert was employed. Edgar testified that
although he did not see the accident, he believed that the truck would not have fallen without
negligence on Robert's part. There was no proof that Robert was negligent in any manner.
Without this proof, Dr. Thomas' claim of comparative fault fails. The trial court did not err in
excluding the issue of Robert's comparative fault.

Directed Verdict on Pecuniary Damages

Dr. Thomas claims that the Huffmans failed to establish the nature and extent of the
pecuniary damages they sustained as a result of Robert's death. Dr. Thomas specifically points
to the fact that the Huffmans' economic expert, Dr. Ward, did not testify at trial.

In ruling on a motion for a directed verdict, the trial court is required to resolve all facts
and inferences reasonably to be drawn from the evidence in favor of the party against whom the
ruling is sought. Where reasonable minds could reach different conclusions based on the
evidence, the motion must be denied. A similar analysis must be applied by an appellate court
when reviewing the grant or denial of a motion for a directed verdict. T.S.I. Holdings, Inc.
v.
Jenkins, 260 Kan. 703, 714, 924 P.2d 1239 (1996).

"Pecuniary loss or damages in a wrongful death case should be equivalent to those
pecuniary benefits or compensation that reasonably could have been expected to have resulted
from the continued life of the deceased." Laterra v. Treaster, 17 Kan. App. 2d, 714,
726, 844 P.2d
724 (1992). It allows a parent to recover "benefits which the parents may reasonably be expected
to receive from him" as an adult. Laterra, 17 Kan. App. 2d at 726. Kansas courts
have long
recognized that parents may recover pecuniary damages for the death of their majority age
children. Railway Co. v. Fajardo, 74 Kan. 314, 324, 86 Pac. 301 (1906). The issue
currently
before the court involves the amount of proof necessary to support an award of pecuniary
damages.

Dr. Thomas relies on McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982), to
support his
position; however, the Kansas Supreme Court in Wentling v. Medical Anesthesia
Services, 237 Kan.
503, 701 P.2d 939 (1985), established a more flexible standard for determining pecuniary loss
than
the one stated in McCart. Plaintiffs in wrongful death actions are not required to
prove their
losses with mathematical certainty. In many instances, the burden of proof can be satisfied
simply by showing the nature and extent of the loss asserted. This would include evidence that
the decedent regularly cooked, cleaned, or maintained the home. The jury is presumed to be
capable of converting the losses into monetary equivalents on the basis of their own experience
and knowledge. 237 Kan. at 510.

Robert Huffman was 22 years old. He lived at home with his parents. Richard, his
father, is disabled and unable to work. Karen, his mother, is a double amputee. Richard testified
that Robert helped around the house and the yard, trimming and cutting down dead trees.
Robert also remodeled the family bathroom. Robert helped his mother by doing laundry and
other household chores. He also helped her with heavy lifting and other tasks that Karen was
unable to perform, and he contributed money for household expenses.

Both Richard and Karen testified about their loving relationship with Robert. The family
spent a lot of time together in the evenings, watching basketball and talking. The Huffmans
presented testimony from friends and neighbors who knew Robert. Alice Ward described
Robert as a willing, friendly, and kind person. Susan Barnett testified that Robert was a "really
caring person" who helped out around the house.

Kansas law is clear that the plaintiff does not need to prove the amount of pecuniary
damages to any level of mathematical certainty. There is no requirement that an economist
present expert testimony. In this case, the Huffmans presented evidence of Robert's
contributions around the house, as well as the companionship he provided. The trial court did
not err in denying Dr. Thomas' motion for a directed verdict.

Sufficiency of Evidence for Award of Pecuniary Damages

Dr. Thomas argues that the $907,732.52 pecuniary damage award was not supported by
sufficient evidence. Dr. Thomas also states that even if Robert provided services to his parents
in the past, he would not be able to do so in the future, given the extent of his injuries and that
had Robert lived, he might have been confined to a wheelchair.

When a verdict is challenged for insufficiency of evidence or as being contrary to the
evidence, it is not the function of this court to weigh the evidence or pass on the credibility of
the witnesses. If the evidence, when considered in a light most favorable to the prevailing party,
supports the verdict, it will not be disturbed on appeal. Cerretti, 251 Kan. at 361-62.

The issue of pecuniary damages was submitted to the jury in five separate categories: loss
of services, loss of attention, loss of filial care, loss of protection, and funeral expenses. The jury
was also instructed that the amount awarded for the first four damages should be equivalent to
the monetary benefits or compensation that the Huffmans could have expected to receive from
Robert in the future.

There was sufficient evidence to support the jury's award of pecuniary damages.

In ruling on a motion for a directed verdict, the trial court is required to resolve all facts
and inferences reasonably to be drawn from the evidence in favor of the party against whom the
ruling is sought. Where reasonable minds could reach different conclusions based on the
evidence, the motion must be denied. A similar analysis must be applied by an appellate court
when reviewing the grant or denial of a motion for a directed verdict. T.S.I. Holdings, Inc.,
260
Kan. at 714.

In order to prevail in a medical malpractice action, a plaintiff must prove three elements:
(1) A duty was owed by the physician to the patient; (2) the duty was breached; and (3) a causal
connection existed between the breached duty and the injury sustained by the patient. Every
physician has the duty to use reasonable care and to exercise that reasonable degree of learning,
skill, and experience which is ordinarily possessed by other physicians in the same or similar
locations. In a medical malpractice action, expert testimony is required to show that the
physician breached the standard of care. Heany v. Nibbelink, 23 Kan. App. 2d 583,
586-87, 932
P.2d 1046 (1997).

The Huffmans' expert, Dr. John Barrett, director of the trauma department at Cook
County Hospital in Chicago, based his opinion in part on a Combined History and
Physical/Death Summary that was dictated by Dr. Thomas as attending physician. As an
attending physician, Dr. Thomas owed Robert a duty of care and Dr. Barrett testified that Dr.
Thomas' failure to get Robert to the operating room constituted a deviation from the standard
of care. The only question remaining is whether this deviation caused Robert's death.

Dr. Barrett testified that when Robert arrived at the Providence ER he had an "excellent
chance of survival." Dr. Barrett placed Robert's survival chances at 80 to 85 percent. Dr. Barrett
believed that Robert bled to death from numerous sources of internal bleeding and that the
bleeding could have been controlled by performing surgery.

The trial court correctly denied Dr. Thomas' motion for a directed verdict. Dr. Barrett
provided testimony that the jury could have relied upon in finding a causal nexus between Dr.
Thomas' negligence and Robert's death. The issue of causation was disputed. Thus, a directed
verdict was not appropriate, and the trial court did not err in denying Dr. Thomas' motion for
a directed verdict.

Juror Misconduct

Dr. Thomas argues that jurors improperly considered attorney fees they felt would be
deducted from the award when arriving at the amount of pecuniary damages owed to the
Huffmans.

Juror misconduct which results in prejudice to a litigant and impairs his or her right to
a fair and impartial trial requires a new trial. It is for the trial court to determine whether
misconduct on the part of the jury has resulted in prejudice to a litigant. The trial court's
judgment will not be overturned absent a manifest abuse of discretion. State v.
McGraw, 19 Kan.
App. 2d 1001, 1013, 879 P.2d 1147 (1994).

Dr. Thomas' motion for a new trial states that an affidavit from juror Cheryl Lang, as
well as a sworn statement from defense attorney Sally Howard, establish juror misconduct. Dr.
Thomas contends that both statements indicate that jurors impermissibly increased the damage
award to account for attorney fees. Unfortunately, neither Lang's nor Howard's affidavits is in
the record on appeal. Assertions in an appellate brief are not sufficient to satisfy inadequacies
in the record on appeal. Smith v. Printup, 254 Kan. 315, 353, 866 P.2d 985 (1993).
In Dr.
Thomas' reply to the Huffmans' memorandum in opposition to his motion for judgment
notwithstanding the verdict or new trial, an affidavit from juror Arturo Garcia was included.
It states that in "considering the amount of nonpecuniary damages to be awarded . . .
the jury
accounted for the fact that the Huffmans would not receive the entire amount awarded.
Specifically, the jury considered that attorney fees, taxes, medical expenses and funeral bills
would be reduced from the damages awarded." (Emphasis added.)

The Huffmans countered with nine affidavits stating that attorney fees were not included
in the pecuniary damage award. Charles Gambill, the presiding juror at the trial, specifically
discounted the sworn statement given by Sally Howard. Two jurors stated in their affidavits that
jurors Cheryl Lang and Arturo Garcia disagreed during most of the deliberations. The trial court
did not err in refusing to grant a new trial based on juror misconduct. There was no abuse of
discretion.

Affirmed.

1REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme
Court granted
a motion to publish by an order dated December 21, 1999, pursuant to Rule 7.04 (1999 Kan. Ct.
R. Annot. 44).